information that was obtained by way of telecommunications monitoring. Due to the
fact that screening is untargeted, it is not possible for the Federal Intelligence Service
to ascertain, before it has taken note of an act of communication, that the communication is related to the press, which also means that the Federal Intelligence Service
lacks the possibility to respect the protective effects of the freedom of the press before taking note of an act of communication. This fundamental right, however, must
be taken into account when recording, using and transferring data and information.
II.
The challenged regulations allow encroachments upon the aforementioned fundamental rights in several respects.
184
1. The monitoring and recording of acts of wireless international telecommunication
by the Federal Intelligence Service encroaches upon telecommunications privacy.
185
As Article 10.1 of the Basic Law intends to protect the confidentiality of communication, every effort to take note of, record and utilise communication data by the state is
an encroachment upon fundamental rights (cf. BVerfGE 85, p. 386 [at p. 398]). There
is, therefore, no doubt that the fact that Federal Intelligence Service staff takes note of
screened acts of telecommunication constitutes an encroachment upon fundamental
rights. In order to determine whether this also applies to the measures that precede
analysis by the Federal Intelligence Service, they must be regarded in their context
that is determined by the objective of monitoring and of the use of the obtained data.
186
This means that the screening alone constitutes an encroachment, to the extent that
it makes the communication available to the Federal Intelligence Service and is the
basis of the subsequent comparison with the search concepts. Screening does not
constitute an encroachment to the extent that acts of telecommunication between
German subscriber lines were also screened in an untargeted manner and solely for
technical reasons but were discarded by technical means immediately after signal
editing without leaving any indication that monitoring had taken place. The mere fact
that the obtained data cannot be immediately attributed to specific persons does not
mean that there has been no encroachment; it was confirmed at the oral argument
that in these cases it is also possible, without any difficulty, to establish references,
especially to the identity of individuals.
187
The encroachment upon telecommunications privacy persists through the storage
of the screened data, which makes the material available for comparison with the
search concepts. The comparison itself constitutes an encroachment, as it comprises
the selection of data for further evaluation. This applies whether or not the comparison takes place automatically or is carried out by staff of the Federal Intelligence service who, for this objective, takes note of the content of the act of communication. As
the further storage after screening and comparison serves to make the data available
for evaluation, it is also an encroachment upon Article 10 of the Basic Law.
188
47/77